In its ruling of February 27, 2018 (case reference: VI ZR 489/16), the Federal Court of Justice ruled that the operator of an internet search engine is not obliged to ascertain whether the content contains infringements of personality rights before displaying its search results.
Search engine operators such as Google only have to react if they become aware of the infringement of personality rights through a specific reference.

Google’s results list links pages with privacy violations

Google always searches the Internet fully automatically using special software and adds the websites it finds to its search index.
Using an algorithm, these results are then sorted and presented to the user of the search engine in a list according to relevance.

A married couple objected to this approach.
They were IT service providers and helped create an internet forum at the beginning of 2011.
After some time, a dispute arose between members of this forum and another forum.
The dispute subsequently escalated so that members of the \”hostile\” forum found out the couple’s email and IP address and obtained their identity.
Posts were then published on various websites in which the couple were held responsible for actions within the forum.

In a targeted search via the Internet search engine Google, the searcher is shown the personality-infringing posts about the couple, in which they are referred to as \”ass-kissers\”, \”serious criminals\”, \”criminal scoundrels\”, \”terrorists\”, \”gangs\”, \”stalkers\”, \”criminal stalker household\”.

OLG and BGH agree: Google not liable

After the regional court granted the injunction in part (Regional Court of Cologne, judgment of August 16, 2015 – 28 O 14/14), the court of appeal dismissed the action in its entirety as unfounded (Higher Regional Court of Cologne, judgment of October 13, 2016 – 15 U 173/15).
The appeal before the BGH has now also failed.

In the opinion of the BGH, the couple are not entitled to any claims against Google due to the violation of general personal rights.
The content objected to by the couple, which Google only made findable via links, was not the search engine operator’s own content.
Contrary to the couple’s opinion, Google had not adopted the posts in the internet forums as its own.

Liability as a so-called indirect interferer could certainly be considered, but only if Google intentionally and causally contributes to the infringement of personality rights.
In principle, this is also the case here.
After all, the posts that violate personal rights are made discoverable through the display in the search results.
However, liability on the part of the search engine operator also presupposes a breach of verification obligations.

In this regard, the BGH comprehensively states that the search engine operator cannot be expected to check every search result to see whether or not the results contain violations of personality rights:

“The assumption of a general control obligation – which is practically impossible to achieve – would seriously call into question the existence of search engines as a business model that has been approved by the legal system and is socially desirable.”

Reduced testing obligation – Internet cannot be used without search engines

The judges in Karlsruhe argue that the Internet can no longer be used effectively without search engines.
The ever-increasing flood of data on the internet requires a search function.
Search engine operators should therefore be privileged to a certain extent, as they only have a specific duty of conduct if they become aware of a public and immediately recognizable infringement of rights through a specific reference.

BGH reaffirms its previous case law

With this ruling, the Federal Court of Justice is continuing its case law from December 2016.
At that time, it also came to the conclusion that Google’s obligation to check must not be too strict.
The search engine operator Google only had to check the link and the content and delete it if necessary after being notified of a possible infringement of personality rights.

However, if Google does not comply with its obligation to remove the infringing content after the notice, the search engine operator itself is liable.